Proposals to update the Workers Act offer minor victories

The Ontario government recently introduced Bill 194, which proposes amendments to the Working for Workers Act that was first adopted as law in 2021 and will amend various aspects of the Ontario Employment Standards Act (ESA).

As with the previous versions, the planned amendments offer marginal advancements in workplace rights. While the government claims it is “providing ground-breaking protections for workers,” the proposals take only a few cautious steps in that direction.

That is because the bill does not tackle the big employment issues facing employees in Ontario, such as rampant misclassification of workers as “contractors” to avoid basic employment law obligations and the use of termination clauses to compel employees to accept minimal rights on termination.

That said, some suggested provisions in this Bill are worth commending. The major one is that it would require that any job posting include wage details.

Job posting must include wage info

This is a sensible reform. If someone loses their job, let’s say as a mid-manager at a large firm, they will be looking for positions that pay as well or better. As it now stands, Ontario employers don’t have to list a salary range in job posting materials, leaving prospective candidates unsure if they are wasting their time in applying for a position that they will not want to accept.

Once the new Workers Act becomes law, employers must “include in the posting information about the expected compensation for the position or the range of expected compensation for the position.”

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This provision will benefit workers in more ways than one. Let’s say someone has been downsized by a firm and given three or four months of pay in lieu of notice. The employee is unable to find suitable work for a year or more after that, so they launch legal action, asking for 12 months of notice pay commensurate with their time with the firm.

One defence employers commonly bring up is that the worker failed to take reasonable steps to mitigate their damages by looking for suitable comparable work. The employee did not apply to enough jobs or use all the tools available to them, the firm can argue.

Disputes about what is proper mitigation

The dispute about what is proper mitigation can get very detailed. In some cases, the employer will swear an affidavit that lists hundreds of supposedly suitable jobs. The list is usually taken from online forums like LinkedIn, Indeed or industry-specific websites. 

The employee will then respond with arguments or evidence such as:

• Job X will have me travel too far;
• Applicants to Job Y require a Master’s degree that I do not have; or
• Job Z is for a manager and I was a senior vice-president.

The employee should also be able to argue that many positions on the list provided by the employer are not suitable because the pay is insufficient. But, since many current job postings do not include a salary range, that argument could fall flat, though it is perfectly valid.

This proposed provision in the Act will indirectly help people caught up in disputes about whether they made enough effort to mitigate their damages. That is a good thing for workers, whether they are applying for positions or disputing compensation after they are let go.

The new rule will also help counsel on both sides of the mitigation issues since there will be added transparency in employment postings, adding helpful evidence as to which job is suitable and which is not.

Welcome amendments

Other noteworthy provisions in the Act include:

• Banning the use of Canadian work experience as a requirement in job postings or application forms.
• Prohibiting the withholding or deduction from an employee’s wages where a customer of a restaurant, gas station or other establishment leaves the establishment without paying, often referred to as a “dine and dash” or “gas and dash.”
• Prohibiting unpaid “trial shifts” that are common in the restaurant and hospitality industries.
• Giving greater certainty to employees starting a new job by requiring employers to list information such as location and hours of work.
• Ensuring that remote employees receive the same eight-week minimum notice of termination or pay-in-lieu as their in-office colleagues.
• Requiring employers to disclose the use of AI during the hiring process.
• Removing barriers facing internationally trained professionals when seeking registration in regulated professions in Ontario.

All in all, small wins for Ontario workers but some potential good steps forward nonetheless.

More from Cavalluzzo LLP:

‘Devil will be in the details’ with proposed workplace amendments